Indian Landowners Party is gathering information from allotment landowners on trespasses throughout Indian Country. In some cases people are building homes or other structures on the trust allotments without permission. Roads have been built across these allotments and pipelines have been built without the permission of the landowners. In all cases the Indian landowners are not receiving compensation.
What action is the trustee (the Bureau of Indian Affairs) taking? Generally they take no action. Sometimes it is the Bureau of Indian Affairs roads department that is trespassing or authorizing trespass on the client’s land.
“The BIA has double standards towards Indian people. Trespass is one of the BIA’s favorite words....yet they believe it does not apply to them.” This quote was from a landowner about the BIA Roads Department trespassing on her land and she could not get them off the land.
On another reservation there is a trespass that has been ongoing for 49 years. The estimated damages several years ago were $150,000. The trustee has received letters on this trespass since the first year of the trespass. It just has not been that important. Out of three generations of landowners only one is living and is still fighting to get the opportunity to occupy her land. Her 94-year-old aunt told her it was up to her to continue fighting for the land that had been in her family since the 1870s.
The Bureau of Indian Affairs knows about many of these trespasses but has not taken action. Some of the landowners have given up on even reporting new trespass activity after years of failure on the part of the trustee to take action. The problem goes up the line to the Solicitor’s Office, the in-house attorney for the Department of Interior.
From the Solicitor’s web page: With an emphasis on high ethical standards, excellence in public service and the delivery of superlative advice and counsel, our Office performs the legal work for the United States Department of the Interior, and manages the Departmental Ethics Office and Departmental FOIA Office. With more than five hundred total employees, more than four hundred of which are licensed attorneys, the Office strives to provide sound legal services to fulfill the Department's diverse and wide-ranging mission.
The allotment owner client may question the “high ethical standards,” the “excellence in public service” and the “delivery of superlative advice and counsel.” Where are the four hundred attorneys assigned? I doubt very many of them are working on the critical issues for Indian Country.
How many pipelines are on Indian land today that do not have a right of way? What is the value of the oil passing through the pipelines? How many pipelines or other uses has the trustee allowed to piggy back within a BIA road right of way?
This seems to be a fairly common practice in the Great Plains region. The Bureau cannot deny knowing about it because some of the pipes are above ground running along BIA roads on the Fort Berthold Reservation, specifically BIA 12.
Failure of the trustee to take action on a trespass is a serious breach of the trust. There are several statutes and court cases to support the landowners case against the trustee. The U.S. holds the “naked fee.” That means it has no right to use, benefit or enjoyment of the land. In Jones v. Meehan, an 1899 U.S. Supreme Court Case, neither the executive branch, the judicial branch or Congress has the authority to make a disposition of land against the wishes of the landowner.
Without a written agreement, the entire arrangement violates the statute of frauds. We are told of right of way transactions where the landowner never gave consent in violation of Jones v. Meehan. Under Section 5 of the General Allotment Act, a contract or agreement touching Indian lands is not valued without the formal approval of the Secretary of Interior. Even side agreements are subject to approval under Palm Springs Paint Company v. Arenas. In U.S. v. Rickert, unapproved documents are void as a matter of law and there can be no approval without consent.
The trustee has some options to take, short of going to federal court. They can at the very least make a determination of the value of the trespass. The law allows the collection of damages for six years and 90 days. To the credit of Tim LaPointe, the Great Plains Regional Director, the Bureau issued a bill for collection to Tesoro for $187 million for trespass. On appeal the Assistant Secretary Tara Sweeney overturned the decision and did not allow briefs from the Indian landowners.
This is an unfortunate situation. Most of the time the trespass is not investigated. If it is investigated it stops there. No letters to the trespasser. No determination of value is placed on the trespass. Even if there is action taken, the party in trespass often does not take it seriously and for good reason since the chance of any court action is almost non-existent.
This issue is important to the landowners. It is important to Indian Landowners Party. We want to hear from the landowners about trespass activity on their land. Contact us through the Indian Landowners Party Facebook page or emailing firstname.lastname@example.org. A “Trespass on Allotted Lands” report will be submitted to the Secretary of Interior on November 1, 2021.